The bankruptcy trustee of the Busan Savings Bank, a bankrupt corporation, the Busan Savings Bank, the lawsuit taking over the lawsuit of the Busan Savings Bank.

Defendant (Law Firm Hang, Attorneys Park Gi-won, Counsel for the defendant-appellant)

January 24, 2013

Busan District Court Decision 201Gahap18027 Decided February 16, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 150,000,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. The Busan Savings Bank Co., Ltd. (hereinafter “SPC”) was affiliated with the Busan Savings Bank Group together with the Busan Savings Bank. However, Nonparty 2, the president of the Busan Savings Bank Group and Nonparty 3, the vice president of the Busan Savings Bank Group, etc. borrowed the name of the executives and employees belonging to the Bank and carried out the development project of real estate or golf clubs, etc. through the special purpose corporation (SPC and the Busan Savings Bank established a company established on the basis of a name director, a borrowed-name director, a borrowed-name stockholder, etc. to carry out the implementation project by avoiding restrictions on non-execution project under the Mutual Savings Bank Act; hereinafter “SPC”), and then registered the implementation project funds as a stockholder or an officer of the Busan Savings Bank. The Busan Savings Bank had the Busan Savings Bank carry out the development project of real estate or golf clubs, etc. by getting the SPC extend a loan to it.

B. The non-party 1 (the non-party in the judgment of the Supreme Court) who worked as an employee of the Busan Savings Bank was registered as the representative director of the Red Pin Co., Ltd. and the Busan Savings Bank paid a certain amount monthly amount to the defendant in return for the name lending.

C. On April 29, 2011, the Financial Services Commission issued business suspension measures against the Busan Savings Bank on the grounds of business insolvency, and on May 3, 2011, appointed employees of the Korea Deposit Insurance Corporation as managers pursuant to Article 14-3 of the Act on the Structural Improvement of the Financial Industry.

D. On March 201, the Central Investigation Department of the Supreme Prosecutors' Office (hereinafter referred to as the "Central Investigation Department") initiated a large-scale investigation into the corruption of the Busan Savings Bank Group. On May 1, 2011, the Seoul Central District Court prosecuted the total of 21 executive officers and employees of the Busan Savings Bank Group, including Nonparty 2 and 3, who were detained by Nonparty 2 and 3 due to a suspected violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement and Breach of Trust).

E. Meanwhile, as a result of the investigation by the Ministry of Health and Welfare, SPC’s officers and employees were composed of employees or relatives of the Busan Savings Bank, and the manager of the Busan Savings Bank intended to collect each letter on the return of unfair payment of benefits directly received from them. However, the head office of the Busan Savings Bank was occupied by the Emergency Countermeasure Committee, due to the lack of location and human resources conditions due to the increase of the number of business affairs related to the payment of insurance money to depositors, and there was no demand from the related parties, respectively. As the manager of the Busan Savings Bank consulted this issue with the Korea Deposit Insurance Corporation, the Administrator of the Busan Savings Bank was dispatched to the staff of the Korea Deposit Insurance Corporation in connection with the insolvency investigation by the Busan Savings Bank, and the Korea Deposit Insurance Corporation requested cooperation between the officers and employees of the Busan Savings Bank, including the Defendant, and Non-party 4, a vice head of the Korea Deposit Insurance Corporation, the vice head of the Busan Savings Bank, after consultation with the Busan Savings Bank on May 201.

F. On June 201, the public prosecutor non-party 6, who belongs to the Department of Diplomatic Inspection, summoned Non-party 1 as witness in order to investigate the use of SPC’s funds, the reasons for the name lending, and the receipt of unfair benefits, etc., and requested Non-party 1 to prepare a statement on the name lending of SPC and the receipt of unfair benefits. On June 29, 201, Non-party 1, who summoned Non-party 1 as his/her agent, and summoned Non-party 1, who was represented by the Defendant, to return KRW 150,000,000, which he/she received unfairly as benefits, to the Busan Savings Bank (hereinafter “each of the instant statements”).

At the time, under the direction of Nonparty 6 of the public prosecutor, the prosecution investigator was drafted from Nonparty 1. Nonparty 1 prepared each of the instant reports by means of using only the name and amount of the sampling of each of the books presented by the prosecution investigator in the public prosecutor's office, and then delivered them to the prosecution investigator.

G. Meanwhile, during the period from June 24, 2011 to June 29, 2011, in addition to the Defendant, the executives and employees of the Busan Savings Bank or the nominal names, Nonparty 7 Jeju 1), Nonparty 2, Nonparty 9, Nonparty 10 Jeju 4, Nonparty 11-5, and Nonparty 12-6) prepared a written statement as the same circumstance with the Defendant and delivered it to the prosecution investigator.

H. On August 16, 2012, the Busan Savings Bank was declared bankrupt on August 16, 2012 when the lawsuit of this case was pending, and the Plaintiff appointed as the bankruptcy trustee was taken over the lawsuit of this case.

[Ground of recognition] The non-contentious facts, Gap evidence 1, 2, 3-1, 2, 3-1, 2-2, 4-1 through 8, 5, 6-1, 7-2, Eul evidence 1, 3-1, 2, 3-1, 2, 3-1, 7-1, 2, 8-2, 3, 11-1, 2, 2-2, 3, 12-1, 2-2, 2-2, and 4-1, 2-2, and 4-1, 12-2, the testimony of non-party witness of the court of the first instance, the result of fact-finding of the whole pleadings against the Prosecutor General;

2. Determination as to the cause of action

A. The plaintiff's assertion

The plaintiff, as the cause of the claim of this case, the prosecutor or prosecutorial investigator who belongs to the prosecutor's division or prosecutor's investigator (hereinafter " prosecutor's investigator, etc.") delegated the authority to receive the letter of this case from the Busan Savings Bank, and prepared and delivered the letter of this case from the non-party 1, the defendant's representative, and the defendant agreed to return KRW 150,000,000 to the Busan Savings Bank through the letter of this case. Thus, the defendant is liable to pay the above KRW 150,00,000 to the plaintiff who took over the Busan Savings Bank and the delay damages.

B. Determination

1) First of all, it is not sufficient to recognize that the Minister of Health and Welfare granted the authority to collect the letter of this case from the public prosecutor, etc. who prepared and received the letter of this case from Nonparty 1, the defendant's representative, as well as the authority to collect the letter of this case for the Busan Savings Bank. In other words, the Administrator of the Busan Savings Bank, after consultation with the Korea Deposit Insurance Corporation, decided to collect the letter of this case from the related persons at the request of the Korea Deposit Insurance Corporation. However, it is insufficient to recognize that the Busan Savings Bank granted the authority to collect the letter of this case from the public prosecutor, etc. or that the public prosecutor, etc. was in the status of the deceased in the Busan Savings Bank in relation to the requisition of the letter of this case, and there is no other evidence to acknowledge

B) On the other hand, even though the requisition act of this case such as prosecutor, etc. was an act of unauthorized Representation without delegation from the Busan Savings Bank, the plaintiff argued that since the Busan Savings Bank filed the lawsuit of this case on the premise that it is valid, it confirmed the act of Unauthorized Representation of prosecutor, etc., the above act of Unauthorized Representation has effect retroactively as a lawful representation act. However, in order for Unauthorized Representation to take effect as a lawful representation act by ratification of the principal, the plaintiff must perform any legal act with "an intention to act on behalf of the principal", and the other party should have known or known such situation. In collecting each of the of this case, the prosecutor did not indicate that it was for the Busan Savings Bank, which is the principal, and as seen in paragraph (2) below, the defendant or his agent recognized the effect of each of this case as the other party at the time of preparation of each of the letter of this case, and it cannot be seen that it did not have effect to the Busan Savings Bank's relationship with the Busan Savings Bank.

2) Even if it is deemed that a prosecutor, etc. has a legitimate authority to collect each of the instant notes on behalf of the defendant on behalf of the defendant on behalf of the Busan Savings Bank, in order for the agent to be constituted as an acting act (Article 114(1) of the Civil Code), if the agent did not indicate that he is acting for him, such expression of intent shall be deemed to be his own act (main sentence of Article 115 of the Civil Code). However, only if the other party is aware or could have known that he was acting for him, such act takes effect as an acting act (proviso of Article 115 of the Civil Code), and there is no evidence to prove that the prosecutor, etc. prepared and delivered each of the instant notes from the non-party 1, the defendant, the agent, etc., and thus, in order to recover money from the Busan Savings Bank on the basis of each of the instant notes, the Busan Savings Bank should have known or should have known that he was acting for the defendant at the time of preparation of each of the instant notes.

Thus, in light of the fact that the contents of each of the instant statements were “to return the benefits received by the Defendant to the Busan High Bank”, it is difficult to view that the Defendant or his agent, at the time of its preparation, knew or could have known that the Defendant or his agent would collect each of the instant statements on behalf of the Busan High Bank on behalf of the Plaintiff, but there is no room to view that the Defendant or his agent, etc., knew or could have known that the instant statements were collected on behalf of the Plaintiff. On the other hand, it is extremely exceptional to deem that the Defendant or his agent, who was an investigative agency, did not receive the payment on behalf of the Defendant or his agent, and that it is difficult for each of the instant statements to view that each of the instant statements were received by the Defendant or his agent, and thus, it is difficult to view that each of the instant statements was received by the Defendant to be returned to the Busan High Bank on behalf of the Defendant or his agent, and thus, it is difficult to view that the Defendant or his agent, as his agent, did not necessarily have to be returned to the Busan High Bank on the ground that they were received.

3) Therefore, since the effect of the letter of this case does not extend to the Busan Savings Bank, the Busan Savings Bank cannot claim the amount of money in the letter of this case against the defendant on the basis of the letter of this case.

3. Conclusion

Therefore, the plaintiff's claim is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judges Gobalm (Presiding Judge) Moderns applied mutatis mutandis

1) At present, the proceeding is pending in this Court No. 2012Na5087.

2) At present, the proceeding is pending in this Court No. 2012Na5636.

3) At present, the proceeding is pending in this Court No. 2012Na5094.

4) At present, the proceeding is pending in this Court No. 2012Na5964.

5) At present this Court 2012Na5957 is pending in the proceeding.

Note 6) At present, the proceeding is pending in this Court No. 2012Na5575.

Note 7) Even based on the results of the inquiry into Prosecutor General of this Court in the instant case No. 2012Na5094, which is the relevant case, the Minister of Land, Infrastructure and Transport responded to the purport that the Minister of Land, Infrastructure and Transport did not have any status as the deceased or an agent of the Busan Savings Bank.